Prayagraj, Aug 17 The Allahabad High Court has held that the governor's power to grant premature release under Article 161 of the Constitution is a sovereign executive power, but it cannot be exercised arbitrarily, as it remains regulated by the applicable rules and remission policy.
A bench of Justices J J Munir and Tarun Saxena made the observation while quashing an order refusing premature release to a convict, who was sentenced to seven years' rigorous imprisonment.
The court found that the decision refusing premature release suffered from an error apparent on the face of the record, as it incorrectly recorded the period of incarceration undergone by the petitioner.
Petitioner Ram Pratap Singh was convicted in an attempt-to-murder case by the additional sessions judge of Fatehpur district in Uttar Pradesh in 2002 and sentenced to seven years' rigorous imprisonment.
His criminal appeal before the high court was dismissed in 2019 and thereafter, the Supreme Court also dismissed his special leave petition (SLP).
In September 2022, a proposal for his premature release was sent to the jail authorities and the Fatehpur district magistrate, but it remained pending. The petitioner later made an application in February 2025, seeking a decision on the proposal, wherein he pointed out that he had served more than half of his sentence.
The jail report recorded that he had served a prison term of four years, six months and six days without remission and five years and four months with remission, against the seven-year sentence. His conduct was recorded as satisfactory.
However, in June 2025, a decision was communicated refusing his premature release on the ground that he had served a jail term of only two years and six days without remission and two years, one month and 27 days with remission.
The petitioner's counsel argued before the high court that the decision had ignored the jail report and wrongly calculated his period of incarceration. It was also contended that the order did not disclose any adverse material against him and failed to consider his satisfactory conduct in jail.
Agreeing with the petitioner's arguments, the high court noted that under Rule 4(iii) of the Uttar Pradesh Prisoners' Release on Probation Rules, 1938, a convict in the applicable category becomes eligible for premature release after serving one-third of the sentence without remission.
Since the petitioner had actually served a jail term of four years, six months and six days without remission against a seven-year sentence, the court found that he had served more than half of the sentence.
In this backdrop, the court observed, "There is absolutely no basis to this finding, except that it is borne on an error apparent and also betrays a case of non-application of mind to the record."
The court also termed the misreading of the period of incarceration a manifest illegality.
On the nature of the governor's power under Article 161, the court observed that the same cannot be exercised arbitrarily. It stressed that the power is regulated by rules and the remission policy.
"Even though the power under Article 161 is a constitutional power, as distinguished from the statutory power of the state government under section 432 of the Code of Criminal Procedure (CrPC), the decision cannot be arbitrary or borne on an error apparent, as important as the period of incarceration suffered by the convict," the bench said.
The court, however, noted that if the correct period of detention was communicated to the respondents, the conclusion might have been different.
Consequently, the high court allowed the writ petition and quashed the June 26, 2025, order denying premature release to the petitioner.
The matter was remitted to the government for a fresh decision on the petitioner's plea for premature release, to be taken within a month from the receipt of the high court's order passed on August 10.
